Upload
britton-bailey
View
219
Download
0
Embed Size (px)
DESCRIPTION
3 Ensures flexibility Tribes and EPA develop approaches Elements to be Reasonably severable Consistent with legal requirements TAR review - Modular Approach
Citation preview
Tribal Decision on Implementation TAS/Delegation/TipTIP/TAS Training December 3, 2012
2
Trust responsibility Federal Implementation Plan (FIP)
required With necessary and appropriate
provisions Without unreasonable delay
Fundamentally tribes don’t have to implement the CAA the Regions will implement where the tribes don’t
Federal Implementation
3
Ensures flexibility Tribes and EPA develop approaches Elements to be
Reasonably severable Consistent with legal requirements
TAR review - Modular Approach
4
Tribal Decision Matrix Matrix developed to prompt and explore
options for tribes considering taking on implementation of CAA
The following scenarios are explained in decision- matrix process with assumption that Tribe may want to start with no, little, or limited
participation Tribe may want to start small and develop
programs over time, understanding that any combination or mixture of these steps are for tribes
4
5
Decision Matrix5
6
Assessment Using “assessment” in general context,
tribe will need basic information in order to determine extent they want to participate in implementation of CAA
Determine area of concern What type of pollutant? Are there issues that community members
have brought to your attention?
6
7
Assessment (cont.) Determine what level of assessment is
appropriate for your area, Example: windshield surveys, emissions
inventories Identify sources out there, so when presenting
to council you have data to support proposed plan of action
Identify plans for future economic development (potential sources on the way)
7
8
Identify/Determine Priorities Identification of priorities is important
Number of sources on reservation Resources Political direction of the tribe Sovereignty protection Economic development Environmental protection
Determine what the tribe is willing to engage in or prepared to do today to implement CAA And, to what extent in the future
8
9
Basic Option Selection Develop possible options through
meetings within tribe and with EPA using available information
Identify questions to ask EPA to make more informed decisions or to help your tribal government make more informed decision
9
10
Steps in Process Next slides will move from lowest
involvement or none at all, to EPA implementation, to TIP development
Keep in mind: tribe may determine to jump in between steps due to capacity and predetermined work as move toward developing a plan
10
Tribal Decision Matrix
NAAQS through a Federal Implementation Plan (FIP)
EPA required to implement programTribe not required to participate
Tribe may decide To do nothingLimit participation (i.e., outreach, conference calls)Participate or begin building capacity and work with EPAReview permitsHelp with outreach to community
TAS
12
EPA Implementation12
Cons No fee mechanism – built in Implementing other rules Less control over progress/rule implementation Can be seen as infringement on sovereignty
Pros/Cons More supportive of sovereignty than if they had
their own rules (Ask Rio for comment on delegation)
13
EPA Implementation (cont.) Pros Builds capacity Credibility No TAS necessary Medium resources – administratively Control – more than other options No enforcement for tribe (no
responsibility to track sources)
13
Tribal Decision Matrix
Established agreement to authorize administration of one or more federal rules in FIP with tribe, to assist in whole or partial administration of specific part of interest to tribeEPA retains enforcement responsibility EPA will need FIP in place for this option
TAS
15
Delegation Cons No fee mechanism – built in Implementing other rules Pros/Cons More supportive of sovereignty than if
they had their own rules Can be seen as infringement on
sovereignty No enforcement for Tribe
15
16
Delegation (cont.) Pros Capacity Credibility No TAS necessary Medium resources – administratively Control – more than other options
16
17
Delegation (cont.) Requirements for delegation
Must show federal recognition Have governing structure to carry out duties
and powers over defined area Identification of boundaries covered by
delegation Provide adequate authority to carry out the
aspects of provisions Demonstrate tribe has or will have technical
capacity• For tribe to take delegation, TAS is not
required
17
18
Delegation (cont.)18
Delegation can be requested for entire FIP or it can be severable
Roles and responsibilities: tribes can take on as much as they want or limit amount of responsibility under delegation Tribe may determine under inherent authority to
develop tribal rules or codes to implement program
Capacity: tribes can work through delegation with EPA to build capacity through delegation work
19
Steps in Requesting Delegation
General Process for Delegation 1. Tribe expresses interest to EPA about receiving
delegation for certain provisions of the CAA2. Tribal staff -to- EPA staff phone call is appropriate first
step 3. Tribe and EPA continue ongoing discussions during
development of delegation request. EPA will review draft request as appropriate
4. Tribe formally requests delegation by way of letter to EPA Regional Administrator from Tribal Chairperson that includes all information required by delegation rule
5. EPA formally responds to tribe and acknowledges receipt of request for delegation
6. EPA sends a letter to all appropriate governmental entities
19
20
Steps in Requesting Delegation (cont.)General Process for Delegation 7. EPA can provide tribe with draft delegation agreement
modeled after existing delegation agreements 8. Tribe and EPA review comments by tribe on draft
delegation agreement and agree on language for delegation agreement
9. Tribe and EPA consult on government-to-government basis at tribe’s request
10.After delegation agreement is signed, EPA publishes notice of delegation in Federal Register
11.When notice of delegation agreement is to be published in Federal Register, EPA publishes announcement of delegation agreement in local newspapers
20
Tribal Decision Matrix
Signals tribe’s intention to develop an ongoing program
Establishes authority to be treated as a state for key issues like reviewing permits, designations, transport
Can help level playing field with states
TAS
22
TAS
Cons Need identify boundaries to be coveredPros/Cons EPA will retain enforcementPros Establishes the tribes intention to run a
program Provides support for tribal participation in
state activities Exertion of tribal sovereignty – “higher”
22
23
Treatment as a State (TAS) Tribes need TAS to implement
CAA via TIP and may get TAS for delegation
Can obtain TAS for many elements of CAA
Requirements for TAS
23
24
TAS Timeline EPA’s process for reviewing a federally-
recognized tribe’s eligibility application for TAS in order to administer a regulatory program under CAA. Four steps:Step 1: Tribe submits application
Pre-application discussions and technical assistance (between tribe and EPA)
EPA review of pre-application materials (if requested) Tribe submits application to EPA EPA notifies tribe of receipt of application and, as
needed, requests additional information from tribe, within 30 days of receipt of application
Tribe submits additional information (if applicable)
24
25
TAS Timeline (cont.)25
Step 2: EPA review EPA reviews application and determines if it is
complete EPA notifies all appropriate governmental entities
of the application and how it identifies reservation boundaries, and of any assertions regarding tribal authority over non-reservation areas, within 30 days of receipt of initial, complete application
EPA notifies tribe, in writing, that application is complete no later than when EPA provides notification in step 1
26
TAS Timeline (cont.)Step 3: Comment period (if needed)
Appropriate governmental entities and public can comment regarding reservation boundaries or tribal authority over non-reservation areas; comments generally due within 30 days
EPA provides comments to tribe within 30 days of close of comment period
Tribe reviews comments and may respond If authority dispute arises that EPA cannot
promptly resolve, it may approve portion of application addressing undisputed areas. See 40 CFR 49.9(e)
26
27
TAS Timeline (cont.)27
Step 4: Final TAS eligibility decision
EPA prepares decision document and response to comments
EPA regional official signs decision document
EPA notifies tribe of decision within 30 days of signature
Tribal Decision Matrix
Tribe can choose to develop TIP to assume primacy for ensuring that NAAQS are met within its jurisdiction
Developing TIP gives tribe option of implementing & enforcing its own program
Once TIP is approved, provisions of implementation plan become federally enforceable in addition to being enforceable by tribe
TAS is required for TIP
TAS
29
Tribal Implementation Plan/Tribal RuleCons TIP is more involved (TAS, boundary, code
writing) Enforcement collaboration with other
jurisdictions (MOU/MOA) Role – resource intensive “High” Processing – intensive coordination with EPAPros/Cons Enforcement issues
29
30
TIP/Tribal Rule (cont.)Pros Tribally implemented program Tribal rules Exertion of tribal sovereignty –
“highest” Fees can be built in Most control over sources
30
31
Tribal Implementation Plan (TIP) As part of decision process, tribe may determine to
develop/implement a TIP Tribe may request ALL or some elements of CAA
Title I to develop TIP TIP may include selected elements of complete
NAAQS implementation plan, provided elements are reasonably severable from other CAA elements not included in TIP Potential elements of a TIP are• Maintenance strategies• Attainment strategies• Source preconstruction permits (NSR)• Regional haze plans
31
32
TIP RequirementsRequest for determination of eligibility
TAR requires EPA to determine that tribe iseligible to implement CAA programs (TAS) before approval• Tribe must demonstrate federal recognition• Have governing body carrying out substantial
government duties and powers• Provide evidence that tribe will perform functions
pertaining to management and protection of air resources within exterior boundaries of its reservation or other areas within tribe’s jurisdiction• Demonstrate tribe’s capability to administer
effectively the program for which it is seeking approval
32
33
TIP Requirements (cont.) Administrative elements
Letter of submission from tribal leader requesting EPA approval of TIP elements
Documentation that tribe has Adopted plan into law Sufficient authority in tribal law to adopt and enforce TIP Adoption date Effective date of plan
Evidence that tribal environmental agency has sufficient personnel and resources to develop, implement, and enforce proposed TIP elements
33
34
TIP Requirements (cont.)34
Evidence that public was notified in accordance to EPA requirements; certification that public hearings were held; compilation of public comments and tribe’s response• Public needs at least 30 days to review TIP
and submit comments to tribe• Public hearings should be advertised at least
30 days in advance (preferably 60 days) Technical information used to prepare TIP
35
TIP Requirements (cont.) Demonstration of enforcement authority
Enforcement program should include• Resolutions and laws passed by tribal government to
establish authority to do inspections and enforce laws• Requirements for emission sources to monitor
emissions and periodically report to tribe emissions data and other information needed to determine compliance• Procedures for inspecting sources to verify emission
limits are met, issuing notice of violations, and assessing fines
Limitations on tribe’s criminal enforcement authority will not prevent TIP approval• Generally covered by MOU between tribe and EPA
35
Areas/Questions to consider when taking initial action or moving between basic options in decision matrix
Example QuestionsWhat capacity is necessary to take on delegationWhat are criteria for delegationWhat resources are neededHow implement a delegated programWhat are pros/cons for tribeWhat are specific roles and responsibilities of tribe and/or EPA in delegated program
33
Decision Matrix (Basic Options)